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HomeMy WebLinkAbout2005/07/28 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA Julv 28. 2005 Cedar Conference Room 3:45 P.M. The meeting was called to order by Chair Rudy Ramirez at 3:45 p.m. 1. Roll Call BOARD MEMBERS PRESENT: Rudy Ramirez, Karen Batcher, Juan Gonzalez, Julius Bennett, and Felicia Starr. Commissioner Navarro had called to say that he would be late. He arrived at 4:10 p.m. BOARD MEMBERS ABSENT: None STAFF PRESENT: Deputy City Attorney Nora Smyth and Secretary Joyce Malveaux. 2. Approval of the Minutes of January 27, 2004 It was MSUC (Batcher/Gonzalez) to approve the minutes as presented. 3. Introduction of New Board of Ethics Member Felicia Starr Chair Ramirez introduced new member Starr and asked her to say a few words about herself. She is the mother of 11 children, works for the Chula Vista Elementary School District, is a Business Major. She would like to become more involved in City issues. 5. Review of Complaints Received DCA Smyth asked if Item 5 could be taken out of order since outside counsel will be providing legal advice on this issue. Lisa Foster from McDougal, Love and Eckis will be advising the Board. The name of the person bringing the complaint will not be used. Mr. Ramirez explained that he is a candidate for City Council. One of the parties to this complaint is a sitting City Councilman, and someone who had endorsed him in his race, so he recused himself. Inasmuch as this would leave the Board without a Chair on this item, and Item 8 on the agenda is the vote for a New Chair and Vice Chair, it was the consensus to move forward with Item 8 and continue Item 5 until the new Chair was seated. Board of Ethics July 28, 2005 Page I 8. Vote for New Chair and Vice Chair Chair Ramirez called for nominations. Julius Bennett nominated and Juan Gonzalez seconded the nomination of Karen Batcher for Chair. Board member Batcher accepted the nomination and was appointed Chair. Board member Batcher nominated and Juan Gonzalez seconded the nomination of Julius Bennett for Vice Chair. Board member Bennett accepted the nomination and was appointed Vice Chair. 5. Review of Complaints Received (Continued) Copies of the complaint and a packet from a local attorney representing the complainant supporting the complaint had just been received by the Board. Counsel Foster explained that under the Ethics Ordinance of the City Code, it is stated that if a complaint is received by the Board, a determination has to be made by a majority of members that there is probable cause that a violation has occurred. If that vote is made, the person who is the subject of the complaint receives notification of the charges. That person is entitled to submit a written response or appear before the Board. If a majority of the Board initially determines that there is no probable cause, the Board can dismiss the matter and notify the interested parties in writing of that result. Also, if the Board feels that criminal, or some other misconduct, has occurred which is not within the purview of the Board of Ethics, they could certainly refer it to the appropriate agency that has jurisdiction on such matters. After reviewing the Code, Counsel Foster felt that Section 2.2.050 (entitled Unethical Conduct) is the section under which the Board will be considering this complaint and they must determine if one of the provisions of that section specifically has been violated. That is the limit of the jurisdiction of the Board. The complaint alleges a serious violation has been made against the Ethics Code. This is the first time the Board has seen the complaint and supporting materials and there may be a need for more time to look it over prior to taking action. Counsel Foster asked if the Board members might be willing to meet at a special meeting, perhaps in one or two weeks, so that members of the community would be satisfied that the Board would be making a decision in a timely fashion. Board of Ethics July 28, 2005 Page 2 Members of the Board requested Counsel Foster to give her opinion of the validity of the complaint. She stated that after reviewing the information, she felt that there is a potential for future misconduct, but does not see any evidence at this time that an official position has been used for personal gain, that confidential information has been divulged, that false statements have been made, that there has been use of City time or resources that are inappropriate, etc. These are the categories she looked at and she could see nothing at this point in time indicating that any of these violations had occurred, but that ultimately it is the Board's determination to rule on this. Member Navarro arrived at this time and was briefed on what had transpired to this point. Member Navarro asked whether the Committee was not only looking at possible misconduct, but also at the potential of criminal misconduct. Counsel responded that if, after reviewing the complaint, the Board believes that that is the case, the matter would be outside the Board's jurisdiction but it could be referred to another agency. If the Board felt that it was not within the parameters of the City's Ethics Code, but there was something questionable, it should be referred to the appropriate enforcement agency. Member Navarro stated that it was a very important issue and if there was any potential of criminal misconduct, he wanted to be on the record because he represents the District Attorney's Office in San Diego County. Counsel clarified that her position at this meeting was to provide legal advice to the Board, not on behalf of the Council member. Members of the community that were present were asked to provide any comments at this time. Sam Wanamaker, a former government worker, felt it was prudent for the Board, in fairness to all parties involved, to study all the information. Susan Watry, Chula Vista resident and member of Crossroads, inquired that if the meeting was set for a future date, what steps would the public need to take in order to be assured of notification in a timely fashion. (End of Tape 1, Side A) DCA Smyth offered to include Ms. Watry on the mailing list. She preferred to be e-mailed so that she receives it in a timely fashion. DCA passed around a tablet for any interested parties to list their e-mail addresses. Jerry Scott, member of Crossroads, was reviewing some of the documents and questioned references to Crossroads which he alleged were incorrect. Board of Ethics July 28, 2005 Page 3 Patricia Aguilar, President of Crossroads II, said she saw three items that were factually incorrect regarding Crossroads II. One was in the first paragraph, as pointed out by Mr. Scott, where it stated that "As a 15 year resident, . . . ., I was disturbed about Steve Castaneda's brother Bob Castaneda's work on a project on behalf of Crosswalk II and the Roosevelt Street Coalition." According to Ms. Aguilar, Bob Castaneda has never done any work for Crosswalk II and she wanted to clarify that for the record. Then she went on to the last paragraph on the first page, where it stated Councilman Castaneda has another connection to Crossroads, i.e., he houses his political campaign office at 276 Third Avenue. According to Ms. Aguilar, 276 Third Avenue has no connection to Crossroads. Another allegation appeared in the fifth paragraph of the complaint, beginning "Councilman Castaneda owns PRF with his business partner." The last sentence in that paragraph states that "In December, 2004, the Crossroads and Roosevelt Street Coalition's anti-Espanada ads, presumably prepared by Bob, started running in the local paper." Ms. Aguilar stated that although she couldn't speak for the Roosevelt Street Coalition, Bob Castaneda has never prepared an ad on behalf of Crossroads. Several Board members questioned what exactly Crossroads II does. Ms. Aguilar explained that Crossroads II is a community group in Chula Vista with approximately 400 members, who try to encourage public participation in City affairs, particularly with regard to land use and development issues. They regard themselves as a volunteer "watchdog" group. Mr. Scott also added that they are not a Political Action Committee and they did not endorse Steve Castaneda in his campaign. They are non-partisan, non-political, issue oriented (primarily growth and development), and they do not endorse candidates. Board member Navarro asked if Ms. Aguilar could put these corrections in writing and provide them to the Board. The Chair asked if any others present in the audience wished to speak on this item. Pamela Bens, said she was at the meeting regarding Item 6, the Chula Vista Redevelopment Corporation discussion. Kip Gardener was here as an applicant to the Board of Ethics and wished to observe it in session. Felicia Starr had a confidentiality issue question and wanted to know if it was okay for this packet to leave the room with non-members. Counsel responded that non-members had received a redacted packet that did not disclose the name of the complaining party. Board members were requested not to give out copies of their packet, but rather instruct people wishing to receive a copy to obtain it from the Board secretary. She also clarified that because this Board is covered Board of Ethics July 28, 2005 Page 4 by the Brown Act, no discussions can be held by Board members outside the meeting process. Chair Batcher asked what the noticing requirements would be for the Special Meeting. Counsel responded that if it's a Special meeting and not at the regular meeting time, the law requires that an agenda be posted 24 hours in advance and any media outlets that have asked to be informed of a special meeting be notified. A regular meeting requires 72 hour advance posting. Patrick (Last name not given), CV Star News, asked if there is a requirement that it has to be published in the paper of record. Counsel responded that there was not. Gonzalez/Bennett (Last name not given) moved/seconded that Item 5, Review of Complaints Received, be tabled to a future date to allow time to review the documents. Chair Batcher asked if the Board was ready to schedule a date so that members of the community who were interested only in this item could leave. She felt it should be scheduled next week, the week of August 1. Board member Navarro asked if the meeting would be at the same time (3:30). The Board was polled and Thursday, August 4, worked but Counsel Foster had a conflict. She said she could possibly get another attorney from her office to attend the meeting. Board member Gonzalez felt that an additional week to review the complaint might be better. The Board was polled for August 8 at 3:30 p.m. The motion to schedule a Special Meeting for August 8 at 3:30 p.m. (location to be determined) to consider Item 5 only, passed unanimously. Board member Navarro indicated he had a question regarding when his term ended. The secretary responded that his term expires June 30, 2007. Sandy Duncan, a member of the public, questioned that the agenda referred to complaint~ received, and noticed that the Star News had been given copies of two letters, one from June 6 and one from June 30. It was explained that the two letters were for the same complaint, but had different dates. Board of Ethics July 28, 2005 Page 5 Ms. Duncan questioned if anyone had met with the complainant. Board member Gonzalez responded that until the complaint was reviewed, the Board would not be meeting with the complainant. Member Ramirez returned as a member of the Board at this point. 4. Proposed Revisions/Amendments to the Code of Ethics. DCA Smyth stated that at one of the Board's previous meetings, there was discussion to revise the Code of Ethics. The Board voted to clarify to whom the chapter of the Code applies. Section 2.28.020, Application of Chapter, talks about the individual, but throughout the rest of the Chapter, they are referred to as City officials, or public officials, or just officials. The Board felt that might be confusing and they would like to clean up that language. There was discussion of the possibility of adding one line to that section. The Chapter used to read, "This Chapter shall apply only to members of the Chula Vista City Council, City Manager, City Attorney, City Clerk, Board members and Commissioners as well as to ex-City officers who are subject to the Conflict of Interest Code. The portion suggested to be added is, "herein referred to collectively as public officials, City officials, or officials." Board member Ramirez felt there were other revisions that the Board wished to make to the Ordinance - the way that complaints were reviewed, whistleblower protection, etc. had been discussed at an earlier meeting. DCA Smyth said that she had that list but her recollection from the meeting was that the language in Section 2.28.020 was the one thing everyone had agreed upon. She said she would be more than happy to come up with language for the other changes if the Board gives her direction. Board member Ramirez reiterated that he felt there was a definite need to revise the method of dealing with complaints. He had suggested previously that the Board take a look at San Diego's ordinance. They had been through a lot of research on ethics throughout the State, and they had put together a very complete procedure, that could be adapted for the City's Board of Ethics. He felt it would provide an excellent example on which to base changes to the Chula Vista ordinance. (End of Tape 1, Side2) Board member Ramirez continued on to say that the Board needs to create an ordinance that is fair and can be used effectively, but not get into political issues or jurisdictions. It was moved and seconded by Board member Bennett to request the City Attorney's staff to review those items that were discussed earlier and look at San Diego's ordinance to see if it could be tailored for use by the City, prepare a draft Board of Ethics July 28, 2005 Page 6 of the amendments to the ordinance, present it to the Board at their next meeting and subsequently forward it to Council for their approval. Chair Batcher indicated that that would require a monumental change for the City and would require an inordinate amount of staff time to be completed in such a short period. This would be a major undertaking, which has merit, but it would need a longer period of time to come back with a revised ordinance. Chair Batcher voiced her concern that maybe this is being done in reverse order and that the Board should look through San Diego's ordinance and offer suggestions on changes to the Attorney's Office, who can then maybe put it into legalese. Board member Ramirez agreed in theory, but indicated that that route had already been taken. He felt that it was not that large a job. He felt it the San Diego ordinance could be provided electronically, the members could "cut and paste" the sections that applied. Board member Navarro agreed that this had been discussed in the past, but that it was a long time ago and some of the newer Board members have not had an opportunity to look at it. He felt a little more time was needed to revisit this issue and more review is needed before implementing these changes. Chair Batcher felt that, in order for that to be accomplished in a timely fashion, the Board would have to have regular meetings. Perhaps one issue at a time could be reviewed instead of it being an overwhelming task. Board member Ramirez said he has a copy of the ordinance, which he will provide to the Board secretary for dissemination to each of the Board members via e-mail. The first section he would suggest the Board review is 26.04.01, Purpose and Intent through Section 26.04.56, about 30 pages. This is a procedure for receiving and processing complaints. Chair Batcher requested that the staff provide the Board with certain sections of the San Diego's Ethics Commission Ordinance, primarily dealing with the processing of complaints, and the Board will review these sections, and discussion of them will be agendized as a topic for the next regular meeting. MSUC (Gonzalez) to accept the amendment as proposed by the City Attorney to Section 2.28.020 to include the language "herein referred to collectively as public officials, City officially or officials." Board member Navarro questioned whether the motion should include wording that this change should be forwarded to Council for action. Discussion ensued as to whether it should go piecemeal or be included with the other changes to be Board of Ethics July 28, 2005 Page 7 made. The Attorney felt that since it is such a minor change, it should be a part of the package requesting approval of all the changes. Member Ramirez asked if the Council should be informed that the Board is considering these changes to the Ordinance. DCA Smyth said that this could be provided to the Council via a memo under the Agenda section Boards and Commissions. It was MSUC (Ramirez/Bennett) to approve the language regarding Section 2.28.020 as submitted earlier. Discussion ensued as to whether the Redevelopment Agency should be included in the language regarding City officials, but inasmuch as the City Council sits as the Redevelopment Agency, they are included in the reference to City officials. 6. Chula Vista Redevelopment Corporation (CVRC) and how Ethics Applies Board member Ramirez explained that he had brought this agenda item forward because he had heard some comments about the CVRC and whether or not they were bound by the Ethics Ordinance, and he was unsure as to the answer. DCA Smyth reported that when she saw that item on the agenda, she pulled the bylaws of the CVRC and, contained within those bylaws is a section that says: "This corporation and its officers shall be subject to all applicable local, state and federal laws and all ordinances and resolutions of the City of Chula Vista, including those governing the conducts of bodies, commissions and committees of the City and members of such bodies, commissions, and committees." In essence, this states that the Code of Ethics will apply to them. Chair Batcher asked who was CVRC and who are its members. DCA Smyth responded that it is comprised of City Council members and appointees. Pamela, a member of the public, had a question about the CVRC. It was her understanding that it will be a non-profit corporation that negotiates with developers in the Redevelopment areas, particularly the Urban Core, but they have their own by-laws. They are a 501 c3 but her concern was that the bylaws state that the City Attorney will be acting as the attorney for the non-profit corporation and the City Attorney acts as the attorney for the City Council. She felt it was self-serving for the City Attorney to serve two masters and that the same people, wearing two sets of hats, sit on both sides of the table negotiating with themselves while the same attorney is advising both sides of the issue. Board of Ethics July 28, 2005 Page 8 Harry Scott, another resident, felt that that could be taken even further and that not only would the City Attorney advise both organizations but so would the CEO and CFO, according to the list of members. DCA Smyth advised them that if they felt this was an issue that they would like to present to the Board of Ethics, complaint forms were available. Pamela Bens clarified that she was not making a complaint - she was just asking a question regarding an item that was on the agenda and making a comment on this issue. Board member Ramirez felt that the CVRC was so new, the Board had not really reviewed its composition. Board member Navarro said that, based on the public's concerns, it could be agendized for a future meeting. Chair Batcher thought the Board could look into it for the next meeting, to see if there is a potential conflict of interest for the City Attorney to represent both the City Council and the Chula Vista Redevelopment Corporation. Board member Ramirez requested that staff provide the Board with the documents establishing the CVRC and any other information regarding its makeup so that this can be discussed at a future meeting. 7. Presentation of Certificates of Recognition The secretary passed out certificates of recognition from the Mayor to the Board members for their service. 8. Vote for New Chair and Vice Chair - taken out of order earlier 9. Oral Communications - Patricia Aguilar was unclear as to what the Code of Ethics was. She questioned whether it was a City ordinance and asked if it was available on the City's Web site. She was told it was. Kip Gardener, an applicant for the Board of Ethics, introduced himself. His biography had been submitted for review and he was available after the meeting if anyone wished to speak with him. Chair Batcher thanked the members of the community who attended today's meeting and provided input to the Board. Board of Ethics July 28, 2005 Page 9 10. Members' Comments Board member Ramirez reflected on his term as Chair and on his vision of what the Board could accomplish in revising the ordinance to improve it. He also felt it might be useful to stage some mock complaints since in the five years he has been on the Board, he has never seen a real complaint involving an investigation and doesn't know how it would be handled. He also thought it was important for the Board to create the standard of ethics and then communicate the standard to all to whom it applies. Board members questioned the status of filling the current vacancies and asked how many openings there were and what the process was. DCA Smyth said it was her belief that when the City receives applications they are forwarded to the Presiding Judge of the South Bay Court per the Municipal Code and interviews take place. There are two vacancies. Chair Batcher suggested that in order to be more effective, the Board should meet on a monthly basis, and on the same day, e.g., the third Thursday of the month at 3:30. After polling the members, the next regular meeting was scheduled for Thursday, August 18, at 3:30 pm. 11. Staff Comments - None ADJOURNMENT at 5:40 pm to the Special Meeting of August 8, 2005 at 3:30 pm, and to the Regular meeting of August 18, 2005 at 3:30 pm. ;,/ ~ ;;~ ~.'~ / (J;ry Barbier' Rec ding Secretary Board of Ethics July 28, 2005 Page 10